First Amendment

Protest Organizers Shouldn't Be Liable for Other People's Crimes

A lower court precedent left unchallenged would unjustly compromise First Amendment protest rights. The Supreme Court should reconsider.

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Recent weeks have shown how easily troublemakers can infiltrate peaceful protests, as even President Donald Trump has admitted. These individuals do not support the cause of the protesters, but exploit the moment to commit acts of wanton destruction. Those few who smash up and loot high-end storefronts should not detract from the message of tens of thousands of peaceful protesters. So why should someone hurt by a lawbreaker be able to sue the person who organized the protest?

In most parts of the country, they could not. But the Court of Appeals for the Fifth Circuit, which covers Mississippi, Louisiana, and Texas, allowed such a lawsuit to proceed in December 2019. A policeman injured by an unknown attacker at a Black Lives Matter protest in July 2016 in Louisiana sued the protest's organizer, DeRay Mckesson, for damages. Mckesson did not attack the officer or urge anyone to commit violence. He simply led the protest at which the attack happened.

The injured police officer argued that Mckesson was negligent because he should have known violence would occur at the event. If this standard had been in place throughout our history, important leaders and staunch advocates of nonviolence like Martin Luther King Jr. could have faced a wave of devastating lawsuits. Violent incidents have occurred even at peaceful protests.

The question is not whether someone got hurt, but whether organizers contributed to the harm. Mckesson did not. In permitting the lawsuit to proceed, the Fifth Circuit's opinion handed a terrible weapon to would-be censors.

Even a successful defense of such a lawsuit costs time and money that most Americans don't have. If protest organizers can be dragged into court whenever an injury occurs in an otherwise peaceful assembly, only those backed by big groups or the wealthy would feel secure exercising their rights. This would chill protest activity for grassroots causes across the political spectrum.

The Supreme Court should follow its own lead from defamation cases like New York Times v. Sullivan. (The Institute for Free Speech, for which the authors work, has filed an amicus brief in support of this case being heard by the Court.) In this area of law, the Court has recognized the need to protect speakers from crushing lawsuits. Public figures who allege defamation must show that not only were they defamed, but that the speaker either knew their statement was false or recklessly disregarded whether it was true.

Similarly, those filing a lawsuit against a protest organizer should have to do more than show they got hurt at a protest. They should be required to provide evidence that the organizer directly and knowingly encouraged or contributed to the harm. Otherwise, our expensive and punishing legal process will harm free speech.

The right to protest is core to the First Amendment. As Americans try to find ways to make their voices heard amidst a global pandemic, courts should not tip the scales against them. The Supreme Court has a chance to set things right. It should take it.

 

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98 responses to “Protest Organizers Shouldn't Be Liable for Other People's Crimes

  1. “These individuals do not support the cause of the protesters, but exploit the moment to commit acts of wanton destruction.”

    Yup, like someone was just dying to burn down the Wendy’s in Atlanta, probably because they once gave them too much mayo on a burger, and the protest over the shooting was just a perfect opportunity

    1. More like someone just wanted to burn down a building and the protest over the shooting made that Wendy’s convenient.

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      2. Sure, the anti-capitalists aren’t really anti-capitalists and the anti-white racists don’t exist. Those are the tenets of the protest if you believe a single sentence of intersectional dogma.

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    2. I was going to write the same thing. These guys have no idea how much this is true. It’s certain many of the looters support the cause, although it’s impossible to specify a percentage or conclude anything about any individual act. But their blanket exoneration of protesters is certainly false wishcasting driven solely by what they want people to believe.

      Terrible reasoning.

    3. So- You think protest organizers should always get sued for any acts of lawlessness that occur during a protest? Good way to eliminate all protests, and the right to assembly slaver.

  2. The injured police officer argued that Mckesson was negligent because he should have known violence would occur at the event.

    I trust the officer also sued the city where the event occurred. Oh, and his own police department.

    1. They’re all gods with qualified immunity. Can’t be touched by mere mortals.

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  3. What comes around, goes around. This continues a prior precedent in which a conservative group organizing an event were supposed to put up a bond against potential damage by protesters. (No link, it was during Obama administration, may have involved Milo Yiannopoulos).

    So, unless Mckesson was involved in instigating the violence, he shouldn’t be responsible. Nor should groups have to put up a bond for an event. This goes equally for everyone.

      1. This goes equally for everyone.

        Some animals are more equal than others.

        1. Duh. Equality is not for everybody.

    1. This also happened to Trump when he held a rally in, get this Minneapolis. By Mayor Frey no less.

  4. In other news; Hitler found not guilty for the holocaust.

    Today the UN issued a statement apologizing for waging war against the Nazi party and the Nuremberg trials.

    After deliberating for 31 hours in a quansa hut, during a blood moon, the council of diversity, inclusion and LGBWTFBBQ+ decreed that it was the lever pullers in the gas chambers and the soldiers pulling the triggers fault for the deaths of over 350 million people.

    I just want to say as a CNN anchor that after the recent uncovering of Hitler’s Diary and subsequent revelation that he was in fact a pooper pusher, like me, that it’s refreshing to see such a brave man stand up to so many hateful people.

    1. LGBWTFBBQ+

      I am so stealing this.

      1. I just use GBLT, so you can pronounce it “giblet”.

        1. You can also use LGBTPRNDL to be inclusive of all varieties of trannies.

          1. Those are only for automatic trannies.

    2. Everyone knows that Hitler was a sexual degenerate. Not that there is anything wrong with that. I love the gays, lesbians, transgenders, intersex, and non-Newtonian genderfluids.

  5. Protest Organizers Shouldn’t Be Liable for Other People’s Crime

    Now do slavery.

    1. Now do the building owners, the assault and murder victims in the riots and all the people losing their jobs to the cancel culture madness.

      I don’t want to see innocent protesters punished either. I also don’t want criminal thugs to be able to loot, burn, beat and shoot people and then blend in with a crowd and re-enter society as if nothing happened because we don’t want to hold anyone responsible. Are we going to keep pretending like Antifa and parts of BLM aren’t either complacent with or actively enabling large swaths of criminal behavior. What’s the long term effect of implicitly telling people they can incite and enact violence with no consequences?

  6. It’s telling that Trump is demanding that people who accept his invitation to rally in large numbers in a confined building waive their right to sue him should they get infected but what’s going to stop the people who get sick from the people who attended that rally from suing Trump?

    1. I eagerly await the “Libertarian case for treating C19 from a Trump rally differently than from a Floyd protest because Orange Man Bad” from Mr McArdle.

      1. Bailey already wrote that one.

      2. There are a few significant differences between the two events. The Trump rally is indoors and more organized. The more you control the event the greater you might be held to account for the consequences.

        1. There are a few significant differences between the two events.

          Just like the significant differences between Home Depot and the First Baptist Church, right you mendacious piece of shit?

        2. The more you control the event the greater you might be held to account for the consequences.

          Unless internets, of course.

      3. “Orange Man Bad”?

        Orange Man bad?!? He BAD, all right! He SOOO BAD, He be GOOD! He be GREAT! He Make America Great Again!

        We KNOW He can Make America Great Again, because, as a bad-ass businessman, He Made Himself and His Family Great Again! He Pussy Grabber in Chief!

        See The Atlantic article by using the below search-string in quotes:
        “The Many Scandals of Donald Trump: A Cheat Sheet” or this one…

        https://reason.com/2019/09/02/republicans-choose-trumpism-over-property-rights-and-the-rule-of-law/

        He pussy-grab His creditors in 7 bankruptcies, His illegal sub-human workers ripped off of pay on His building projects, and His “students” in His fake Get-Rich-like-Me realty schools, and so on. So, He has a GREAT record of ripping others off! So SURELY He can rip off other nations, other ethnic groups, etc., in trade wars and border wars, for the benefit of ALL of us!!!

        All Hail to THE Pussy Grabber in Chief!!!

        Most of all, HAIL the Chief, for having revoked karma! What comes around, will no longer go around!!! The Donald has figured out that all of the un-Americans are SOOO stupid, that we can pussy-grab them all day, every day, and they will NEVER think of pussy-grabbing us right back!

        Orange Man Bad-Ass Pussy-Grabber all right!

        We CAN grab all the pussy, all the time, and NONE will be smart enough to EVER grab our pussies right back!

        These voters simply cannot or will not recognize the central illusion of politics… You can pussy-grab all of the people some of the time, and you can pussy-grab some of the people all of the time, but you cannot pussy-grab all of the people all of the time! Sooner or later, karma catches up, and the others will pussy-grab you right back!

        1. HAHAHAHAHAHAHAHAHAHAHAHA
          OH MY GOD HIHN YOU ARE SO FUCKING FUNNY DUDE!
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          PLEASE STOP SIR, MY SIDES ARE IN ORBIT!

    2. The need for the caution is that “mostly peaceful protesters” from Antifa, BLM, and other Progressive groups will come in and claim to have gotten the Wuhan from the Trumpers. Heck, they would also want to spread the Wuhan to get rid of the Orange Man’s supporters.

  7. Similarly, those filing a lawsuit against a protest organizer should have to do more than show they got hurt at a protest. They should be required to provide evidence that the organizer directly and knowingly encouraged or contributed to the harm. Otherwise, our expensive and punishing legal process will harm free speech.

    I agree completely, but there needs to be the option of discovery in an investigation to see just how much nodding and winking might have been going on behind the scenes by the organizers of these “peaceful” protests. MLK championed civil disobedience and non-violence and condemned violence, anybody heard Antifa and BLM urging calm and law and order and non-violence lately? If you’re organizing a peaceful protest but urging the demonstrators to bring bricks and baseball bats, you’re not actually organizing a peaceful protest.

    1. Its enough to make we wish to lock all the cops and anti-cops into fight cages, and give them weapons with increasing firepower.

    2. The interesting thing here is that holding organizers responsible will not have the intended effect. Rather than organizers taking responsibility for protests, you will find that protests no longer have recognizable organizers. This will of course make it more likely that the people showing up to these protests are unruly, and extremist rather than the “silent majority” types who have other things to do during the day.

  8. By pushing the waivers Trump is acknowledgimg that his event is dangerous so Trump is admitting that he is acting negligent and even reckless but relying on people accepting the danger but viruses are not like normal hazards because the hazards they present continue long after the event and damage people who never agreed to accept the danger.

    1. Or he’s just covering his ass so that some unbelievable fuckwit like you can’t drag a frivolous lawsuit because you got exposed to a cold bug at a Trump rally, when you spent the previous 2 weeks eating ass and sharing needles at the Fuck Whitey rally.

      1. Like I said if you gotten cover your ass maybe you shouldn’t be doing what you’re doing.

        1. So if the chimpout organizers had to face liability for their chimpout they should maybe stop chimping out? Think carefully before you answer.

      2. Or better yet someone who used to work on the Hillary campaign that may or may not have poisoned her husband with fish tank cleaner might already have it, then show up and later bring a lawsuit saying she caught it there.

        But then again the Democrats would never do something so nefarious to make Trump look bad, so that’s just crazy talk.

    1. I thought you were dead?

    2. Wow. Never saw that one before. I shouldn’t be surprised. Another nail in the coffin of Reason being a “libertarian” publication.

      1. Lol at the commentator saying they were gonna unfollow then tagging Welch, as if he would even disagree with the tweet.

  9. Seems like this is the kinda thing we have juries for.

    Anyway,
    “Violent incidents have occurred even at peaceful protests.”
    That is some damn fine Orwell speak right there

    1. “That is some damn fine Orwell speak right there”

      Especially since it’s being repeated multiple times per day all over the media, including here.

    2. Hasn’t Orwell been cancelled yet?

      1. Shhhh. Most of them don’t even know about him. Let’s not give them any ideas.

      2. Soon.
        Once they dont need the instructions anymore

      3. He was a good commie, AmSoc told me so. They have a strict no true comrade cancellation policy.

  10. They should be required to provide evidence that the organizer directly and knowingly encouraged or contributed to the harm.

    Uh… they are? They do it at trial. This is how the process is supposed to work.

  11. While I agree with the overall sentiment of this article, like so many other articles at Reason lately, it doesn’t go into any details of the actual case. Simply saying “Mckesson did not.” in regards to having anything to do with any violence isn’t very convincing when the other side of the argument isn’t even presented. I have seen BLM rallies where the people up on the stage with the microphone are clearly inciting violence towards police. If this happened at this rally, then absolutely the case should go forward. But we don’t know, because the article decides to move on to a defamation case instead of giving more details of this case.

    1. I wouldn’t be surprised if the police intitated the chaos that precipitated the throwing of the object.

      1. Bitches really should wear longer skirts, amirite?

        1. Does it matter how long their skirts are if you’re just going to point a gun at them and do as you please… Eh Georgey?

        2. Especially during home invasions.

      2. Me neither. But I also wouldn’t be surprised if BLM initiates it. So without knowing those details I can’t say that this case should be thrown out. That was my whole fucking point. God you’re thick skulled.

      3. For reference;
        July 5th Alton Sterling was shot, neither the DOJ nor the State of LA filed charges against either officer involved in the shooting.
        July 6th Philando Castile was shot by officer who was charged with manslaughter, acquitted, and fired. The familly sued the city successfully.
        July 8th Five officers and two protesters where shot at a BLM rally resulting from the above shootings. Hundreds of other protesters were arrested at other rallies across the country.

        I remain unconvinced Mckesson and BLM should be any more “immune” from civilian investigation and lawsuit than Antifa. Agreed that the plaintiffs appear to have presented a nonexistent case that the defense somehow still failed to defend against, but those are details for an appeals court to hash out.

        1. Hilariously, I got ridiculed for asserting that Alton Sterling was a BLM (or just SJW) plant because the original footage was captured/released by a ‘community organizer’, even though my observations explicitly required officers to be predictably violent/unruly.

    2. Not specific to Mckesson’s, but I recall the side hustle for the Westboro Baptist Church was holding demonstrations and then suing cities for failing to provide adequate protection when their shit got fucked up. I’m sure many shopkeepers would be interested if any aspect of that applies to them.

      And as with the death of gub control, I see “free speech zones” becoming endangered. Permit to hold a demonstration? Nah bro, selective enforcement by the city. And if my disturbing the peace charges aren’t dropped immediately, I’m going to sue your ass.

      It’s a brave new world of free speech we are entering into, and I can’t wait to see the backpedaling when the wrong groups start asserting their 1st amendment rights.

      1. Unfortunately, we’re already seeing governments clearly treating the 1st Amendment differently depending on the political beliefs of those exercising them, and for the most part getting away with it. Here in Michigan, Whitmer has clearly used politics with these lockdowns, and when anti-lockdown protestors showed up at the capital, she used it as an excuse to keep certain parts of the state locked down. Then, she opened up pretty much everything except barbers, while losing a case regarding this in the Michigan Supreme Court. And what happened after that ruling? Barbers still remained closed until yesterday, while she personally marched in a BLM protest last week!

        She literally ignored a ruling by the Michigan Supreme Court, while protesting in the street with hundreds of people. If this kind of behavior is allowed to continue, what tools exactly are we left with?

        1. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

          1. Unfortunately, I fear we are accelerating towards this, and over the last several months it’s become exponential.

        2. As with most matters of law, I expect differential treatment depending on the political class with rationalizations to follow to keep the grumblers from throwing the rascals out and keep on producing.

          However, when it becomes so blatant, so egregious that every justification sounds like FYTW, there is no need to keep appearances and application of force becomes the rule of the day.

          Probably a bad time to alienate the police forces if you are being pushed towards civil war.

          And not to disparage the black community, but there are several other groups with grievances as well, and now that the rules of engagement have been laid out, game on.

        3. “If this kind of behavior is allowed to continue, what tools exactly are we left with?”

          Violence.
          We’re already there, but whatever. Maybe we’ll get lucky send they’ll kill themselves before achieving total dominance

    3. My recollection of the BLM rally was that it illegally blocked a highway, and the organizers were told not to do that.

      How much difference that should make, I do not know. Current protests also block traffic, but city streets are somewhat different from highways, with fewer alternate routes available.

      1. Interstate highways effect interstate commerce. I’ll let you draw your own conclusions from that.

    4. Of course they blew off the details. At this point it wouldn’t be a Reason article if some critical detail wasn’t omitted.

      In this case, the key omission is that the rally planners deliberately planned to hold the rally in a public road. A hazardous location where it was illegal to hold the protest.

      That made them responsible for the reasonably predictable consequences of doing it, in much the same manner as, if you organize a bank robbery, and somebody gets shot in the course of it, you’re responsible even if you didn’t plan to shoot anyone.

      1. At the very least, if the city lays out a plan and says, “Here’s the public park that can accomodate your protest and where we can guarantee your safety.” and your leadership says, “Nah, fuck it, it’ll be fine.” they could/should be on the hook for adverse outcomes.

        Not saying that’s what happened but it’s an entirely plausible civil scenario that libertarians should rightfully shrug their shoulders and walk away from.

  12. Does that sign say all lives don’t matter, but black lives do?

    1. The sign says “We intend to take over the country and instill Marxist state control over every aspect of your life.”

  13. “So why should someone hurt by a lawbreaker be able to sue the person who organized the protest?”

    For the same reasons as gun manufacturers should be responsible for “gun crimes”.

    You have been laughing for decades as you were told what happens to the second amendment will happen to the first, and now I get to say “I told you so”.

  14. Protest Organizers Shouldn’t Be Liable for Other People’s Crime

    I think that depends on what exactly the protest organizers are doing. For example, if they are asking protesters to bring weapons or call for violence, then they probably should be liable for other people’s crimes.

    Furthermore, if we’re holding cigarette and gun manufacturers responsible for harmful uses of their products, it would seem to be consistent to do the same with protest organizers.

    1. We don’t hold gun manufacturers responsible for harmful uses of their products. And tons of cigarettes are still for sale.

      1. Congratulations for stating the obvious! You’re so brilliant!

  15. Just throwing this out there – What if you organize a peaceful protest, knowing violent elements will infiltrate it, and that was your intent all along? IOW, not saying it’s unacceptable, but intentionally letting them do your dirty work?

    1. >>not saying it’s unacceptable, but intentionally letting them do your dirty work?

      like “we don’t agree w/all the white people starting fires”?

      1. More like “let’s do it so other people will light fires” – so that your true intent isn’t to peacefully protest for your cause, but to provide cover for others.

  16. What would help sort out whether or not these type suits are frivolous or not would be “Loser Pays.”

  17. >>He simply led the protest at which the attack happened.

    “burn this bitch down”

  18. Recent weeks have shown how easily troublemakers can infiltrate peaceful protests, as even President Donald Trump has admitted. These individuals do not support the cause of the protesters, but exploit the moment to commit acts of wanton destruction.

    Just a few… just a few.

  19. Progressive, BLM supporting mayor gets home vandalized by peaceful protesters, refers to it as “domestic terrorism.”

    Sorry the rainbow flag on your porch didn’t help you.

    Selby and her family were not home last night, but her neighbors began texting her when the protesters arrived at her house.

    “I’m really trying to process this,” she told The Olympian over the phone Saturday. “It’s like domestic terrorism. It’s unfair.

    1. Progressive, BLM supporting mayor gets home vandalized by peaceful protesters, refers to it as “domestic terrorism.”

      Vandalism is now peaceful?

  20. Only white people are responsible for other peoples’ actions, obviously.

    1. 1954 Enlightened policy: Brown v Board of Education.
      2020 Enlightened policy: Whites only drinking fountains.

  21. While I tend to agree from a legal standpoint, I like spite. Many of these protestors would support reparations – which is essentially punishing someone for the crime of another.

  22. “But the Court of Appeals for the Fifth Circuit, which covers Mississippi, Louisiana, and Texas, allowed such a lawsuit to proceed in December 2019.” Enough said.

  23. What organizers?
    These are spontaneous uprisings of citizens offended by the excesses of the government agents. Says so right there in the spray paint.

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  24. What’s wrong with this approach to resolve the social unrest?
    “There are a thousand hacking at the branches of evil for every one hacking at the root.” HDT
    And, it doesn’t work. Institutionalized violence can’t be fixed. It’s fatally flawed. It’s the root of the problem.
    The solution is a voluntary system of governance based on reason, rights, choice. That would be new, require a lot of cooperation and a commitment to respect the individual over all else. Can a society change its primitive public policy and act civil, be a beacon for humanity?

  25. The argument might have legs if it wasn’t a BLM protest. BLM is as racist as the KKK.

    If your intent is to stir racial animosity – even under the cover of a “peaceful protest” banner – you should be liable. Its called incitement…

  26. “Amendment I
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

    I notice “peaceably” in the 1st Amendment, I don’t notice the word protest.

    And how naive does one have to be to think that any Progressive outdoor public meeting, is by it’s very nature, already composed of violent elements.

  27. As long as police presence can handle the crowd of protesters, then I support this. There have been occasions such as Bethel, Ohio in which the total crowd of protesters and counter protesters was 1/3 of the population of the town and only 6 officers to handle them.

    I attended an Anti-Trump rally at the Indiana Statehouse in 2017. The organizers were well prepared, organized and kept order. There were some obvious to me people who were there to create chaos, not at the rally, but whenever they had a chance. The uniformed police were not active in surveiling the crowd. There may have been undercover police, which should be present in any large protest or event, to either scope out potential trouble makers. I saw one, shadowed him for awhile, and when he saw me, let him know I was watching him. After an hour, he left.

  28. Speaking personally, I would have to think on that proposition, which might be taken to exclude from responsibility, the promoters of activities likely to lead to violence, this based on past performances.

  29. Nice idea but wrong standards of care and responsibility. NYTimes v Sullivan standard is the specific knowledge of the publisher regardless of how much care or effort they may have taken to determine if what they published was or was no correct. Protest organizers should not be able to “stick their heads in the sand” and ignore all reasonable standards to discourage violent protesters who injury others. There should be a reasonable person standard as opposed to the ignorance is bliss standard of NYTimes v Sullivan.

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